Albany Power &c. Co. v. City of Albany

Atkinson, J. It was contended by the plaintiff that inasmuch as the city on December 23 d used 147 additional horse-power over 300 horse-power, that being the greatest amount of excess power used at any time before the beginning of the quarter commencing January 1st, it was obliged for the quarter so ensuing to pay for that amount of excess horse-power, whether actually furnished to and used by or required by the city or not; it being contended that the maximum excess of horse-power used at any time during the month of December constituted a basis for and fixed the amount of excess power, so that its character should be changed from that of excess power and treated as an enlargement of the 300 horse-power specified in the contract, which the city was flatly and unconditionally bound to pay during the ensuing quarter. It was upon the theory that the city would be so liable that the suit was brought, and the amount sued for is alleged to be the cost of excess horsepower, not claimed to have been actually furnished, but for which the city was bound to pay under the contract, though not actually used or required. Counsel for plaintiff and defendant in their briefs take different views of the contract, but agree that the decision of the court must depend upon how the contract should be construed. If the construction should be according to the plaintiff’s interpretation, as above outlined, the petition was not open to general demurrer; otherwise, if not so to be construed. The question is not whether the defendant has construed it correctly, nor upon a construction of the contract generally, but is solely whether the construction insisted upon according to the allegations of the plaintiff’s petition is authorized by the terms of the contract. In other words, the plaintiff based its claim upon a state of facts which would render the city liable only in the event the contract obligated the city as the plaintiff, by its construction, contended that it did; and if that construction were not well founded, the case would fail. A careful examination of the contract as a whole will show that the obligations of the power company to furnish and of the city to pay for excess or additional horse-power over 300 horse-power are contained wholly in paragraphs 1 and 2 thereof. The paragraphs are to be construed together. Paragraph 2 provides that the city shall pay for 300 horse-power at the rate of $8,000 per annum, payments [381] to be made in quarterly installments of $2,000 each at the end of each quarter; and also that the city was to pay “said party of the first part at the same rate and upon the same terms for such additional power as may be furnished to and used by said party of the second part, and as hereinbefore contracted for.” The words, “and as hereinbefore contracted,” as here used, can have no meaning or reference to paying anything, except to meet such obligation as would result from the performance by the power company of the stipulations contained in paragraph 2 of the contract. Nothing else had been “hereinbefore contracted.” The stipulations in paragraph 1 of the contract called for a performance by the power company, and related only to the furnishing of power by the company to the city. In addition to 300 horse-power stipulated to be furnished without condition, it was further stipulated that the power company would “furnish such power in addition to said 300 horsepower, for the full 24 hours of each and every day during the life of this contract, as said party of the second part may require for its own purpose, and not subject to be sublet by said party of the second part, at the same rate per horse-power and upon the same terms as hereinafter provided.” The stipulations of the city agreeing to pay, as expressed in the excerpt hereinabove quoted from paragraph 2, refer to payment for all such horse-powér as the power eompanjr was bound to supply under the provisions of paragraph 1. But the excerpt above quoted from paragraph 2 is not to be understood as an unconditional stipulation to furnish an additional or excess horsepower over and above 300 horse-power. The words there used, “as said party of the second part may .require,” qualify the words which precede them. To have eliminated these qualifying words would have left the quantity of excess horse-power to be furnished somewhat indefinite. Without such, words the stipulation would have been merely for additional horse-power. Inserting the words, “as said party of the second part may require,” rendered the contract less uncertain. With these words so employed, the limit of excess horse-power which the power company may be compelled to furnish at the stipulated price would be such an amount as the city may require for its own purposes; while,' by the stipulations of paragraph 2, the city was bound to pay for all the excess horse-power, it had the right, under paragraph 2, to have the power company furnish it. We do not see that it can be compelled to pay for any more. [382] The plain words of the contract, given their ordinary meaning and significance, preclude the idea of the existence of an obligation upon the part of the city to pay for additional horse-power which it did not require, or “which was not furnished to ,” or “used by it.” Nor was there anything in the character of the business or conditions attending the parties at the time of the making of the contract, as set forth in the amendment, which would impel the construction contended for by the plaintiff. The word “require,” as used in different contracts, has been construed in a number of cases. See Miller v. Leo, 35 App. Div. 589 (55 N. Y. Supp. 165-7); Mueller v. United States, 19 Ct. Cl. 581; McKeever v. Canonsburg Iron Co., 138 Pa. 184 (16 Atl. 97-98); Wheelhouse v. New Liverpool Gas, Light & Coke Co., 5 Man. G. & S. 798-806; Coe v. Aiken, 61 Fed. 24. Under the constructions placed on expressions somewhat similar to the language employed in paragraph 1, “such as the said party of the second part may require for its own purpose,” it would seem that the word “require,” when so used, would refer to such a reasonable amount as the reasonable exigencies of the municipal service might call for. ■ But it does not seem important, in the present case, to attach any particular significance to any shades of distinction in the various interpretations of the word as here employed, because the plaintiff’s claim does not rest upon the fact that the city requested or demanded the additional horse-power sued for, or that the exigencies of the public service required an actual use of the additional 147 horse-power at any time during the quarter for which it is alleged in the suit the claim is made. Belatively to the amount of excess over 300 horse-power to be furnished, is was the theory of plaintiff that the contract acted automatically, and, if at any time the city should use a given amount of excess power over 300 horse-power, the automatic character of the contract bound the city continually thereafter, for the full 24 hours of each and every day during the life of the contract, to pay for that quantity of excess, although the full amount may not be furnished to or used by the cityr, and it may not have required the same for its own purposés; that the amount of excess thereafter to be paid for could only be changed in one way, that is, by increasing it, which could be accomplished by another automatic change of the contract brought about by some subsequent use of a greater amount of excess horse-power than had theretofore been used or required. In [383] the plaintiffs petition the highest amount of excess horse-power used is referred to as the “peak load,” and it was declared that anyone “peak load” fixed the basis of payment until another was established. Under this theory it is possible that in 'the early stages of the contract an emergency might arise by which additional horsepower would be required by the city in double the amount that it would under ordinary circumstances require, and far greater than it might need under any other emergency after that. The maximum quantity thus established would have to be supplied and paid for during the many remaining years of the contract, although the power company might find great difficulty in supplying it, or the municipal necessities might not in any manner demand.it. It is hardly probable that the parties intended to lay the foundation for any such unreasonable possible result. But leaving out of view the possibility of any such result, we think the language of the contract prevents any construction which would support the theory contended for. Judgment affirmed. All the Justices concur.